Professional Negligence Law Reporter

A Louisiana appellate court held that the negligence claims of a patient who was allegedly sexually abused by a hospital emergency room technician are subject to medical review under the state’s medical malpractice act.

While Alex Shaikh was a patient at Lake Charles Memorial Hospital, he was washed by emergency room technician John Zeno. Zeno sexually assaulted Shaikh and attempted to do so again even though Shaikh had resisted the unwanted contact. Shaikh sued Zeno and the hospital, alleging respondeat superior liability; intentional sexual battery; and negligent failure to train and supervise employees, follow the applicable standard of care, and provide a safe environment. The defense filed a joint dilatory exception of prematurity on the basis that the plaintiff had failed to present his claims to a medical review panel as required under the Louisiana Medical Malpractice Act. The trial court granted the petition in part and denied in part. The court concluded that the plaintiff’s intentional tort claims against Zeno and vicarious liability claims against the hospital were not subject to the malpractice act but that the plaintiff’s negligence claims must first be considered by a medical review panel.

Affirming, the appellate court found that under the malpractice act, a malpractice claim against a private qualified health care provider is subject to dismissal on an exception of prematurity where the claim has not been first presented to a medical review panel. The court found that to determine whether alleged conduct constitutes malpractice, courts will consider various factors, including whether the behavior is treatment related, required medical evidence to determine whether the appropriate standard of care has been breached, and involved an assessment of the plaintiff’s condition. Moreover, courts will consider whether an incident occurred in the context of a physician-patient relationship, whether the injury would have occurred had the plaintiff not sought treatment, and whether the alleged tort was intentional.

The court found that Zeno is an emergency room technician charged with providing patient care, including cleaning and washing patients. The plaintiff was brought to the hospital to receive medical attention, the court added, and Zeno was following nursing staff’s instructions in providing care to the plaintiff up until the time of the alleged assault. Moreover, the court found that under La. Rev. Stat. Ann. §40:1231.1(A)(13), malpractice includes the legal responsibility resulting from omissions in the training and supervision of health care providers. The court concluded, therefore, that the plaintiff’s negligence claims, including that the hospital had failed to provide a safe environment, were subject to medical review under the malpractice act, while his intentional tort and vicarious liability claims were not.

Citation: Shaikh v. Sw. La. Hosp. Ass’n, 2020 WL 2748320 (La. Ct. App. May 27, 2020).